The Discussion Of The Distinction Between Repair And Reconstruction In The Patent Infringement Dispute

Recycling of patented products is related to the interests of the owners and the public. But the patent law of our country is not clearly defined, and it is not clearly defined in the repair and reconstruction of the patent product. It is difficult to solve the complicated and various patent disputes by the lag of legislation and the abstract nature. The court finds in the cause it is difficult to grasp the scale, the emergence of the "different judgments of common case" phenomenon. In this context, by drawing on the experience of developed countries, to improve our legislative norms, rules of the referee, it is particularly important.In the first part, through the investigation of the judicial practice of repair and reconstruction in our country, the paper analyzes the problems of repair and reconstruction in the judicial practice. And determine the nature of the key is to legitimate "repair" and illegal "reconstruction" to delineate the boundaries clearly, but because there is a nature certain continuity between the repair and reconstruction, It is quite difficult to find the clear boundaries between them. When the court deal with such cases,applicable rules is very limited. There are no unified applicable standards,about the same rules, resulting in different judgments of common case.In the second part, through the study of judicial practice in the United States and japan, the cases which are recognized as repair and reconstruction and the judgment rules are sorted out in the judicial practice.There is phenomenon of different judgments of common case in the United States and Japan in judicial practice.Compared to Japan, the United States to relax on the identification of the reconstruction, to promote the development of the country's re-manufacturing industry.The rules of repair and reconstruction in the United States and Japan are more standardized and operational, and the United States has formed a set of precedent in the judicial practice, which is worthy of our reference.The third part discusses the deep theoretical basis of infringement about the recycling of patented product,including patent exhaustion principle,the default permission principle, principle of right abuse.This part expounds the rationality andnecessity of applying the above principles in patent product re-use of tort disputes.And in this part of the argument,analyzing how to identify repair and reconstruction in the determination of patent products infringement.This part also discusses the patent exhaustion theory, implied license theory in the process of the development of different countries.By the comparative analysis, combined with the actual situation in our country, further clearing the scope of patent exhaustion principle and implied license theory in our country.The theme of the fourth part is the status of repair and reconstruction of our country of the rules and suggestions.First of all, discussing our country's judicial documents about repair and reconstruction and analyzing the existing problems.Then,from two aspects of legislation and judicature, the author put forward suggestions for improvement.Making rules in the legislation and in the judicial, balancing all kinds of value, so that the judge can accord to a certain standard in the discretion of the basis of the law to handle the case, so as to better deal with such patent infringement cases.Only in this way can our country develop re-manufacturing industry in a healthy and orderly way, and make the re-manufacturing industry in the development process in line with the "3R" policy of our country and does not affect the patentee's interests and viola the purpose of the patent law.